1. This is an appeal filed by the original complainant whose complaint against the respondent accused in respect of an offence under section 406 of the I.P.C. has been turned down by the Lower Appellate Court. The appeal, however is restricted to the question of return of the property which is the subject matter of this criminal case.
2. The facts relevant for the purpose of this appeal may be very briefly stated as follows :-
For the sake of convenience the parties will be referred to as complainant and accused. The father of the accused was owner of land bearing S. No. 51/1, in which there is a well. On 20th March, 1973, an agreement was arrived at between the complainant on the one hand and father of the accused on the other, by virtue of which the complainant got possession of the land for the purpose of raising banana crop on the same for a period of two years, for certain fixed considerations. The complainant, it was understood would install electric motor on the well for the purpose of irrigation of the land. After the expiry of the period of two years, he was to remove the motor and hand over possession back to the father of the accused.
After the period of two years, the complainant handed over possession of the land back to the accused who by that time had started looking after the property belonging to his father. The contention of the complaint was that he wanted to take away the motor, but the accused requested him to keep the motor on the well so that he could irrigate his banana plantation which was there on the land at that particular time. The complainant agreed but accused did not return the motor even after the agreed period and hence ultimately the complainant approached the police. The accused was called by the police To the Police Station and in the presence of the police the accused accused executed a writing agreeing to return the electric motor by 31-7-1977. But even by that time the motor was not returned with the result that ultimately the complaint had to file the complaint in question on 9-8-1977 against the accused for having committed offence of criminal branch of trust under section 406 of the I.P.C.
3. The defence of the accused was that the complaint owed certain monies to the accused in connection with banana plantations which was a transaction on partnership basis and that in that transaction, the electric motor was given by the complaint to the accused in satisfaction of his debt to the accused. His further contention was that the complainant had written a letter addressed to his own son stating that the motor should be allowed to remain with the accused in discharge of the debt. The letter was sought to be produced by the accused evidence. Finally it was contended that the matter was of civil character and no criminal offence was made out against the accused.
4. The trial Court rejected the defence of the accused and convicted him under section 406 of the I.P.C. and sentenced him to suffer simple imprisonment for three months and a fine of Rs. 300/-. It may be stated here that during the pendency of the case, the motor pump had been attached by the Court and it was lying in the possession of the Court. The learned Magistrate passed an order Section 452 of the criminal P.C. directing that the Electric Motor in question be given into possession of the complainant.
5. In appeal, the learn Sessions Judge disagreed with view taken by the trial Court. The learned Sessions Judge relied mainly upon the writing exhibit 30. The said document could not be said to have been proved at all. Even the accused himself had not identified the signature of the complainant and no evidence had been led to Prove the signature of the complainant on the said document Exhibit 30. The complainant flatly denied having written and signed any such writing in favour of the accused. All the same the learned Judge was of the view that since the accused had made a statement in his examination under section 313 of Cr.P.C. that the document was written and signed by the, complainant, he held that the, same could be relied upon for holding that there was other dealings between the parties. In substance, therefore, he arrived at the conclusion that the matter was mainly of a civil nature and no criminal ingredient was involved in the same. He therefore, allowed the appeal and set aside the order of conviction and sentence passed by the trial Court against the accused.
6. As stated above the present appeal is restricted only to the question of custody of the electric motor. In this connection the learned Judge took a view which can be aptly described as some what pedestrian. This is what he observed in this connection in para 16 of his judgment.
'Since commission of the offence is not established and since the accused has prima facie established his claim to the electric motor in question and since the same was attached from his possession, it is, quite natural and in the fitness of things that the property go to him, leaving the complainant to such Civil dispute in Civil Court as he may choose. The order of the property, therefore, will have to be set aside and the property will have to returned to the accused from whom attached.'
7. Mr. Rane, the learned Advocate appearing for the complainant in this appeal has contended with quite some force that the learned Judge has misread the provisions of Section 452 of the Criminal P.C. which has given extensive power to do substantial justice between the parties. He contended that the learned Judge was wrong in holding that the accused had prima facie established his claim to the electric motor. His contention was that in fact no evidence has been led by the accused to prove even prima facie his title to the electric motor and that, on the other hand, his very evidence showed that the complainant's title and ownership of the motor in question was admitted by him. If this was so, he contended, it was necessary for the Court to hold that at least so far as motor was concerned, it ought to be returned to the complainant and if the accused wanted to lay any claim to the same he could approach the Civil Court for enforcing the said plea.
8. I am of the view that Mr. Rane's contention is well placed. Mr. Rane has also relied upon three authorities in support of his contention to which I will presently allude. But before going to the authorities I must mention the factual position that was canvassed before the Court below. In the instant case, it is not found as a matter of fact that the accused had established his title, even prima facie, to the motor in question. In the first place he had clearly admitted the complainant's initial title to the said motor. He also admitted that he had executed a writing in favour of the complainant promising to return the motor to the complainant on 31-7-1977. No doubt, the said statement may perhaps be barred from the evidence under section 162 of the Criminal P.C. and/or Section 26 of the Evidence Act. But as I will presently point out there are authorities taking the view that for the purpose of satisfying itself about the justification of the claim made by the parties in the criminal litigation, it is open for the Court even to have a look at such a document to satisfy itself about the veracity of the claim of either of the parties. Moreover, Practically no evidence has been led by the accused to prove that any amount was owed by the complainant to the accused, in discharge of which the motor could be said to have been allowed to remain with the accused. No material is brought before the Court to show that the complainant in fact owed any monies to the accused. No attempt is made even to prove the writing Exhibit 30, which was strongly relied upon on behalf of the accused. Even the learned Sessions Judge has not held that the said writing was proved by the accused within the meaning of the Evidence Act. No doubt the learned Judge has relied upon the said writing in spite of the fact that it could not be said to have been Proved and has allowed the said document almost to be the basis for his order of acquittal. It is true that there is no appeal filed against that order of acquittal by the State and further that even the complainant has not taken any proceeding to have the order of acquittal set aside. But while considering the question of Court's power under section 452 of the Cr.P.C. the Court has got to look at the substance of the matter. In the present case, the substance of the matter is that the document, Ex. 30, is prima facie a spurious document which has not been proved at all whereas the writing executed by the accused promising to return the motor pump before 31-7-1979 has been admitted by him. No doubt he contended that the same was taken from him under pressure. But it is significant that not even an attempt was made on behalf of the accused to have the document set aside. Even if it is held that such an attempt is not necessary subsequent conduct of the accused certainly shows that his allegation that the document was executed by him under threat or Compulsion was an after thought. Even assuming that the document is kept out of evidence and out of consideration as a whole still the fact remains that the accused had admitted the title of the complainant and he has not led any evidence whatsoever and has not placed any materials before the Court whatsoever to enable the Court to hold that the complainant's title to the electric motor had been transferred to the accused at some later stage. It is, therefore, clear that in the instant case prima facie it is the complainant's title to the motor pump which must be held to have been established and not that of the accused. The observations made by the learned Judge that the accused had Prima facie established his title to the electric motor is, therefore, devoid of any basis whatsoever. If that is the position, there is no reason why the Court while exercising its jurisdiction under S. 452 of the Cr.P.C. should not do substantial justice and order the disposal of the properties in such a manner that it would go to a person having at least prima facie title to the same.
9. Mr. Umer, the learned Advocate appearing for the accused on the other hand contended in reply that as a rule the property should go back to the accused from whose custody it was taken if the offence relating to the property was not established against the accused. In this connection he relied upon two judgments of this Court and another judgment of the Supreme Court. Firstly he, relied upon the Judgment of this Court in the case of Lakshmichand Rajmal v. Gopikisan Balmukund 38 Bom LR 117 : (1936) Cri LJ 573. In that case the accused were alleged to be in possession of certain stolen property and they were charged for having committed theft in respect of the said property. The charge of theft was brought home only on the ground that accused were in possession of the stolen property. From the evidence, however, it was established that the accused had neither committed theft nor were they proved to be in possession of the stolen property with the knowledge that the same was stolen. Question then arose as to how the property was to be disposed of. In that case the property was ordered to be returned to the accused from whose custody it was seized by the Police. Reliance was placed upon this authority to contend that when the accused has 'been acquitted' of the offence relating to property, the property should revert to the accused from whose possession it was seized by the Police. To my mind it is not a correct reading of the said authority at all. The authority does not lay down the proposition in such a broad and inelastic manner as Mr. Umer would have believed. The authority does not hold that in every case where the accused is acquitted of the offence relating to the property, the court must pass an order directing that the property should be restored back to the accused. In this connection the observation which is relied upon by Mr. Umer itself may be fruitfully quoted to show that the authority did not have in mind the broad and sweeping view of law which Mr. Umer wants me to read into it.
'Under S. 523 what the Magistrate has to consider is, who is entitled to the Possession of the property which has been seized by the Police. Where it is proved that the person from whose person the property was seized came by it dishonestly, the Magistrate may have to consider questions of title in order to determine the best right to possession. But where it appears that the Police have seized from a person who is not shown to have committed any offence in relation to that property, then in my opinion the Magistrate can only hold that person is entitled to possession of the property.'
Even the above observation as it stands can be interpreted that in certain cases the Court has got power and duty to consider the question of title irrespective of the ultimate results of acquittal or conviction. But apart from this aspect of interpretation of the said judgment the question becomes clear when one looks at the judgment of the same learned Judge, Beaumont C.J.; in one of his unreported judgments, which unreported judgment was itself relied upon by him while deciding the abovementioned case. That judgment was in Criminal Revn. Appln. No. 65 of 1935 decided by Beaumont C.J. and N. J. Wadia J. on 2-8-1935. The relevant facts of that case were that a ring was given into the possession of one Gandhi practically as a pledge. Gandhi however dishonestly Pledged that ring with one Marwari. Said Gandhi was subsequently prosecuted and convicted. In those criminal proceedings the Marwari produced the ring in the Court. The question then arose as to whom the ring should be returned. The complainant who had pledged the ring to Gandhi claimed that he was entitled to the possession as where the Marwari who produced the ring in Court, and who was a bona fide transferor for value without notice also claimed possession of the same. The learned trial Magistrate ordered, that the ring should be returned to the Marwari from whose possession it was taken, by placing reliance upon the Sale of Goods Act. In the revision application before the High Court. Beaumont C.J. held that the conclusion was correct but the Process of reasoning was wrong. In this connection he observed as follows :-
'Under S. 517 the Court dealing with property which has been produced before it in the course of an enquiry or trial may make such order as it thinks fit, amongst other things for the delivery to any person claiming to be entitled to possession thereof. What the Court has to consider is who is entitled to possession, and the Court has not to consider, and is not competent to consider, who has a good title in the property. No doubt it may sometimes happen, in order to decide who has the best right to possession, that the Court has to consider prima facie questions of title. If property is produced by somebody who has come by it dishonestly, the Magistrate may not be prepared to return it to him, and may have to consider who has the best right to possession, and for that purpose, to go to some extent into questions of title. But here the ring was produced by the Marwari, who was not shown to have come by it dishonestly, and I think that the proper order for the Magistrate to have made under S. 517, exercising his discretion judicially, was to direct that the ring should be handed back to the man who produced it.'
It will be seen that the gravamen of both the above mentioned judgments delivered by Beaumont C.J. only is that when there are counter claims between the real owner of the property and bona fide transfer for value without notice that is to say between the owner and a person who has come to possession honestly and in good faith, the Court must give weight to the claim of the person in possession in good faith. If the Court had recovered possession of the properties from such person, the Court as a rule should give back to the same person. In both the above mentioned cases the position was that the person from whose possession the property was taken was not proved to have come into possession of it or continued to have remained in possession of it dishonestly or without any title. That was the most pertinent circumstance which has persuaded this Court to take the view that the property should revert back to such person when the Court passes an order under S. 517 of the Code it then stood. The above authorities are clearly distinguishable in the present case, for the very simple reason that in the instant case the accused himself who is in possession of the property and not any other person. The accused is not a person who has come into possession of the property honestly. The proved facts of the case would show that the title of the property was of the complainant. The accused only got permission to use it for some time. Later on he started claiming the title to the property on the basis of certain dues alleged to have been owned by the complainant to him. But the said writing itself has never been proved by adducing evidence and no evidence is led to prove that there was any consideration owed to him from the complainant for getting the title to the motor in question. The continuance of the possession of the accused in respect of the Motor Pump must, therefore, be considered to be dishonest. In this view of the matter neither of the above authorities relied upon by Mr. Umer can be of any assistance to the accused in this case.
Mr. Umer also tried to rely upon the judgment of the Full Bench of this Court in Walchand Jasmaj Marwadi v. Hari Anant Joshi reported in 34 Bom LR 1203 : (1932) Cri LJ 807. In that case the dispute was relating to certain stones. The complainant contended that the stones from his land had been removed by the accused. The Court held that the allegation that the stones belonged to the complainant's land itself was not proved at all, and hence the accused was acquitted. When the question came about the disposal of the property, this Court observed that since the stones were found to be not belonging to the land of the complainant and since they were seized from the accused, the stones should be returned back to the accused. I fail to see any application of this authority to the present case. In the instant case, it is an admitted fact that the Electric Motor martially belonged to the complainant. The accused contends that it has been made over to him in satisfaction of certain debt, but the debt itself is not proved. Any transaction relating to the same is also not proved. In these circumstances, it is impossible to find any bearing of the Full Bench decision upon the facts of this case. Mr. Umer also tried to make an half-hearted attempt to rely upon the judgment of the Supreme Court, reported in : AIR1953SC508 in the case of Pushkar Singh v. State of Madhya Bharat. In that case the accused was charged with an offence of theft in respect of money. The Court held that the money belonged to the accused. Hence the charge of theft was not held proved at all and the accused was acquitted. In the context of this fact, there was the observation made by the Supreme Court to the effect that payment of money could not be ordered unless it was established that offence was committed in respect of the same. Relying upon these observations Mr. Umer contended that if no offence in respect of motor pump was held to have been committed, the pump must be returned to the person from whose possession it was seized. To my mind, the above observations are beings relied upon by Mr. Umer by divorcing them from the admitted facts that existed in the said case. In the first place monies did not have an earmark and in the second place the monies found in the possession of the accused were in fact held to be belonging to himself. It was therefore inarguable that monies could be ordered to be handed over to the complainant. The observations made by the Hon'ble Supreme Court has got to be read in the context of these facts. The said judgment, therefore, cannot be of any assistance to Mr. Umer.
Mr. Rane on the other hand invited my attention to three authorities and all of them have got important bearing upon the question involved in this appeal. The first authority he relied upon is the one reported in ILR (1948) Nag 948 : 50 Cri LJ 104, in the case of Joharilal v. King Emperor. In that case one Joharilal was convicted under S. 379 of the Penal Code and under S. 26(1)(g) of the Forests Act for having committed theft of certain wood, timber and charcoal, in other words of some forest produce. One of the circumstances on which the conviction was based was that the accused was in possession of the said forest produce which was removed illegally. In appeal, the accused was acquitted on the ground that he was entitled to benefit of doubt. The question then arose regarding the disposal of the forest produce seized from his possession. It was in this context that the High Court examined various authorities and held as follows :-
'When an accused is given the benefit of doubt and acquitted of theft it cannot be said that he was necessarily in lawful possession of the property, which was the subject matter of the theft and he is not, therefore, entitled to recover the property under S. 517, Criminal P.C.'
Mr. Rane also relied upon the judgment of the Madras High Court, in Kanagasabai v. Emperor reported in ILR (1911) Mad 94. I have gone through the said decision and I find that the ratio of the said decision certainly helps Mr. Rane. Another very interesting point was also canvassed by Mr. Rane in connection with which he relied upon the judgment of this Court in the case of Queen Empress v. Tribhovan Manekchand reported in ILR (1907) Bom 131. In that case also the accused who was charged with the offence relating to a theft was acquitted by the Court and the question came before the Court whether the accused was entitled to retain the property which was the subject matter of the case and which was claimed by the complainant. The Court had to satisfy itself about the title of the accused or of the complainant to the property. On behalf of the complainant it was urged that the accused had made confession before the Police Officer stating that the property belonged to the complainant but that he had dishonestly taken over the same. Evidently such a statement was not admissible evidence for the purpose of using the same in any way against the accused for holding the offence proved against him. But a contention was urged before this Court that the Court was at liberty to look at the document for the Purpose of satisfying itself that the complainant had a just claim to the said property. This contention was upheld by this Court. The court had a look at the confessional statement in question and on the basis of the same it was satisfied that the complainant had at least a prima facie title to the property. In that view of the matter, an order was passed by the Division Bench of this Court in the said case Queen Empress v. Tribhovan Maneckchand that the property in question be delivered to the complainant and not to the accused.
10. Relying upon these authorities Mr. Rane contended that whatever may be the evidentiary value of the writing executed by the accused dated 21-4-1977, promising to return the motor to the complainant on 31-7-1977, in the substantive trial, the document should certainly be looked at by the Court for satisfying itself that it wag the complainant who had a just title to the electric motor. Mr. Rane contended that having regard to all these facts including the above mentioned document dated 21-4-1977, it should be held by the Court exercising its jurisdiction under S. 452 of the Cr.P.C. that prima facie it was complainant who was entitled to the electric pump being delivered back to him and not the accused.
11. As stated above, I am of the view that Mr. Rane's contention is quite well founded. To my mind, it is a fit case where the Court should exercise the broad jurisdiction conferred upon the Court by S. 452 of the Code to do substantial justice in a summary manner, and to direct the possession of the property to the person who has better title to the same at least prima facie.
12. This appeal is, therefore, allowed. The order passed by the learned Sessions Judge relating to the disposal of the property is set aside. It is ordered that the electric motor lying in the custody of the Court be delivered to the possession of the Present appellant.
It is made clear that the above order is subject to the right of the respondent accused to establish his claim to the electric motor in any appropriate Civil Court which will no doubt decide the proceeding on the basis of the evidence produced before itself.
13. Appeal allowed.